Canadian Charter | Calgary Gay History

This week, Australians voted for marriage laws to be changed to allow same-sex marriage, with the yes vote claiming 61.6% to 38.4%. The debate was divisive (and at times nasty), the vote was expensive, and many within and outside the country critiqued the idea that a plebiscite is an appropriate tool for determining minority rights.

Australians celebrating the yes vote. Photograph: Scott Barbour, Getty Images, in The Guardian.

In Canada, the road to marriage equality had many speedbumps, twists, and turns. Here in Alberta, our political leaders strenuously resisted changes to the definition of marriage, including agitating for a national plebiscite on the issue.

Here is a brief timeline of Canada’s (and Alberta’s) journey to same-sex marriage.

September 1995. Openly gay, Bloc Québécois, Member of Parliament (MP) Réal Ménard introduces a motion calling for legal recognition of same-sex relationships. The House of Commons votes 124-52 to reject it.

March 1998. Another gay MP, New Democrat, Svend Robinson introduces a private member’s bill to legalize same-sex marriage. It does not pass first reading.

May 1999. The Supreme Court of Canada rules in M. v. H. that same-sex couples in Canada are entitled to receive many of the financial and legal benefits commonly associated with marriage.

June 1999, The House of Commons overwhelmingly passes a resolution to re-affirm the definition of marriage as “the union of one man and one woman to the exclusion of all others.”

March 2000. The Alberta Government passes Bill 202 which amends the provincial Marriage Act to include an opposite-sex-only definition of marriage. The bill also promises to invoke the notwithstanding clause in the Canadian Charter of Rights and Freedoms to insulate the legislation from any legal challenge based on Charter rights violations.

January 2001. Metropolitan Community Church (MCC) Reverend Brent Hawkes attempts an end run for same-sex marriage by taking advantage of a little-used common law marriage protocol “reading the banns of marriage.” The Ontario registrar refuses to accept this marriage as legally performed triggering a lawsuit.

June 2003. The Court of Appeal for Ontario confirms a lower court ruling declaring Canadian laws on marriage violate the equality provisions in the Canadian Charter by being restricted to heterosexual couples. The court decides there would be no grace period for adjustment, making Ontario the first jurisdiction in North America to recognize same-sex marriage. (It also ruled the MCC banns marriages legal). Prime Minister Jean Chrétien announces that the Federal Government would not seek to appeal the decision to the Supreme Court.

July 2003. The B.C. Court of Appeal makes a similar decision. Same-sex marriages are now allowed in British Columbia.

March 2004. The Quebec Court of Appeals rules similarly to the Ontario and B.C. courts and orders its decision to take effect immediately. Now, more than two-thirds of Canada’s population live in provinces where same-sex marriage has been legalized.

February 2005. The Civil Marriage Act, Bill C-38, is introduced by Prime Minister Paul Martin’s Liberal minority government. He advises that it will be a free vote in the House of Commons. Many Liberals assert they will vote against the government on this bill. Then Calgary based Canada Family Action Coalition declares a boycott on Famous Players Theatres because of a ten-second ad that urges moviegoers to contact their MPs to say they support same-sex marriage

May 2005. Paul Martin’s minority government survives an impossibly close (153-152) motion of confidence, almost scuttling the legislation.

June 2005. Bill C-38 passes third reading in the House of Commons in an extended debate well into the evening of June 28th. The vote total is 158-133. The Prime Minister allows the Liberal backbenchers a free vote but whips his cabinet into voting for the bill causing Minister Joe Comuzzi, a traditional opponent of same-sex marriage, to resign from cabinet. The voting breakdown is:

Party	For	Against	Absentees	Total
Liberals	95	32	4	131
Conservatives	3	93	2	98
Bloc	43	5	6	54
NDP	17	1	1	19
Independents	0	2	2	4

Calgary Centre MP Lee Richardson is one of only a handful of Conservative MPs who vote in favour of Bill C-38. Stephen Harper controversially claims that “the law lacks legitimacy because it passed with the support of the separatist Bloc party.” NDP MP Bev Desjarlais is stripped of her position in the NDP’s shadow cabinet for voting against it. Alberta Premier Ralph Klein opines that the Alberta Government might opt to stop solemnizing marriages entirely, suggesting that the Government would issue civil union licences to both opposite-sex and same-sex couples.

July 12, 2005, Klein concedes that expert legal advice suggests that refusing to marry same-sex couples had little chance of succeeding in a court challenge. “Much to our chagrin,” he adds.

July 20, 2005. Bill C-38 receives royal assent after passing in the Senate the previous day. The law affects Alberta, Prince Edward Island, Nunavut and the Northwest Territories, the only jurisdictions in Canada whose courts had not yet decided in favour of same-sex marriage.

December 2006. Prime Minister Stephen Harper brings a motion to reopen the definition of marriage with his Conservative minority government. The House of Commons defeats the motion 175-123. Prime Minister Harper declares the issue concluded.

Epilogue:

In a recent interview, former Prime Minister Paul Martin acknowledged his conflicted voting history on the issue. Martin noted that he opposed same-sex marriage in 1999 but later realized that he had not given sufficient consideration to the question. He related a personal anecdote of close family friends who have a lesbian daughter. She was happily partnered in Vancouver. He emphatically said: “What right do we have to deny happiness to people?” This personal revelation helped make Canadian history.

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In 1982 the Canadian Charter of Rights and Freedoms gave all Canadians equal rights “regardless of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” However, the Charter was initially silent on sexual orientation. It was not until November 1989 when the Federal Court of Canada first accepted sexual orientation as a prohibited ground of discrimination under the Charter. It ruled that Timothy Veysey, a gay prison inmate in Ontario had the right to conjugal visits with his same-sex partner.

Up until then, Canadian Courts had mostly manifested a double-standard in discrimination cases. Discrimination based on race or religion, for example, was clearly defined and remedied. Homosexuality, on the other hand, was up for debate whether it could be a protected ground at all. Judges either deferred to society’s objection to homosexuality, based on diffuse religious grounds: “rebutting a millennium of moral teaching ” or punted it back to legislators to decide.

In December 1987, Delwin Vriend began working for King’s College: A Christian Liberal Arts College in Edmonton. Throughout his employment, he was given positive evaluations, salary increases and promotions for his work performance. On February 20th, 1990 in conversation with the President of the College, Delwin was asked about his sexual orientation. He disclosed he was gay. Causing much anguish and hand-wringing, the College developed a position statement on homosexuality which was adopted by its Board of Governors on January 11th, 1991. Shortly after that, the College asked Vriend to voluntarily resign – he would be paid 3 months severance. He declined and was fired.

{Read the King’s College Memo of Jan 14, 1991, communicating its position statement on homosexuality: here. Source Library and Archives Canada}

Within weeks, Gay and Lesbian Awareness (GALA), an Edmonton-based civil rights organization, began organizing actions to “respond to this dreadful and unacceptable firing.” With Delwin’s support, they set up a “Delwin Vriend Defense Fund” to assist with legal costs, and began soliciting donations from the community.

In June of that year, Vriend and GALA tried to file a complaint with the Alberta Human Rights Commission on the grounds that his employer discriminated against him due to his sexual orientation. The Commission gave Vriend a pass explaining he could not make a claim because the Individual Rights Protection Act (IRPA) did not include sexual orientation as a protected ground.

In early 1994, GALA wrote to their sister organization, the Calgary Lesbian and Gay Political Action Guild (CLAGPAG) seeking moral and financial support to sue the Government of Alberta. They need $6,000 more dollars to take the case to the Court of Queen’s Bench.

Financial support rolled in and on April 13th, 1994, Judge Anne Russell decisively ruled that Alberta’s human rights law was inconsistent with the Charter of Rights. In her decision, she wrote: “Regardless of whether there was any intent to discriminate, the effect of the decision to deny homosexuals recognition under the legislation is to reinforce negative stereotyping and prejudice thereby perpetuating and implicitly condoning its occurrence.” The Alberta Human Rights Commission would now have to investigate discrimination cases based on sexual orientation.

On May 5th, the Government of Alberta appealed Russell’s decision and asked the courts to freeze the Human Rights Commission’s new mandate.

The Alberta Court of Appeal ruled 2-1 in favour of the Government, against Vriend, on February 23, 1996. Justice John McClung made national headlines with the sensational phrasing he used in his decision, including the number of times he used the word “morality.” He was bold enough to invoke both sodomy and a link to serial killers Dahmer, Bernardo, and Olsen. He wrote: “I am unable to conclude that it was a forbidden, let alone a reversible legislative response, for the province of Alberta to step back from the validation of homosexual relations, including sodomy, as a protected and fundamental right, thereby, ‘rebutting a millennium of moral teaching.'”

This mobilized Alberta’s gay community into action like no other court case had before. Fundraising efforts redoubled, and there were cheers heard when on March 6, 1996, Vriend decided to appeal to the Supreme Court of Canada which agreed to hear the case. Garden parties, garage sales, collection plates at gay bars – there were solicitations for the Delwin Vriend Defense Fund seemingly everywhere.

On November 4th, 1997, the Supreme Court hearings began. The Court heard from 17 interveners including provincial governments, religious organizations and civil liberties groups. Alberta Premier Ralph Klein pandering to his socially conservative base threatened to invoke the notwithstanding clause (section 33 of the Charter) in order to override any defeat the Court might deliver. The entire country appeared to be hooked on the Court Case and vitriol filled newspapers and airwaves.

Then on the morning of April 2, 1998, the Supreme Court was about to deliver its verdict. Vriend recalled: “I remember standing outside the door of the lawyer’s office in Edmonton, just after nine o’clock in the morning. I just couldn’t bring myself to step inside. Then I heard the cheers from inside the office, and I just started crying.”

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Victorious Vriend at a News Scrum on April 2nd, 1998: Source CBC News Edmonton

The Supreme Court minced Appeal Justice McClung’s previous legal arguments and ruled unanimously in favour of Vriend. They wrote that the exclusion of homosexuals from Alberta’s Individual Rights Protection Act was a violation of the Charter of Rights and Freedoms.

They further wrote: “the exclusion from the IRPA’s protection sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation. Perhaps most important is the psychological harm which may ensue from this state of affairs. In excluding sexual orientation from the IRPA’s protection, the government has, in effect, stated that “all persons are equal in dignity and rights” except gay men and lesbians. Such a message, even if it is only implicit, must offend” Section 15 of the Charter.

At a press conference later that day Vriend said: “Shame on you, Ralph Klein, shame on you (Treasurer) Stockwell Day. You had until 7:45 this morning to do the right thing, and you demonstrated to the very end that you are not a government of the people. You are a government against the people. Haha, I win!” to the applause of supporters.

Delwin Vriend, right, gets a congratulatory kiss from partner Andrew Gagnon at a post-verdict rally at the Edmonton Legislature. [Photo Credit: The Canadian Press/Kevin Frayer]

Federal Justice Minister Anne McLellan said she was pleased with the judgment: “I believe profoundly that all Canadians, including Albertans, do not see it as appropriate to discriminate on the basis of someone’s sexual orientation.” The ruling immediately had a similar effect on Prince Edward Island and the Northwest Territories, the only two other jurisdictions that had not included sexual orientation in their human rights laws by then.

Many Calgarians were jubilant that night, filling gay bars to capacity. Local television journalists were doing live newsfeeds from the bars too, fervently trying to get a soundbite from joyous revellers.

Vriend, emotionally drained from the long unfolding court cases, would shortly thereafter move to Paris, France. He explained that he had had a lifetime’s fill of media attention, demonstrations, protests and hate mail.

The Vriend decision proved to be of great importance to future legal battles in Canada. It was specifically used to argue provincial cases against bans on same-sex marriage throughout Canada. Also, the decision shaped legal precedent concerning provincial and federal government relationships.

During the 10th Anniversary celebrations at Edmonton City Hall, the landmark decision was described as “Alberta’s Stonewall,” referencing the riots that sparked the gay liberation movement in New York in 1969.

Former Edmonton City Councillor, Michael Phair, who had been involved with the Delwin Vriend Defense Fund from the very beginning recalled: “I remember the immediate rally and goodwill with the verdict. People were very celebratory, but over the next few days, things began to darken substantially with the backlash. I and many others were caught in the maelstrom that occurred for about a week after the decision. Because I was an out public figure, there had been some death threats, and extra security had to be called in. It was not until Klein finally accepted the decision and said that he wouldn’t use the notwithstanding clause that things settled down.”

In 2013, Delwin Vriend travelled to Calgary and was honoured with the inaugural Chinook Fund Hero Award which is given annually by the Calgary Chinook Fund in thanks and recognition for outstanding contributions to the LGBTQ community and our history.

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